EMERITA DE GUZMAN v. ANTONIO TUMOLVA
Prayed for dismissal of action and
October 19, 2011 | Mendoza, J. | Temperate Damages
Digester: Roa, Annamhel Monique C.
SUMMARY: De Guzman entered into a Construction Agreement with respondent
company, with a certain plan and specifications for the perimeter fence. The Contractor,
however, made deviations from this plan. The fence collapsed during a typhoon. De
Guzman sought to recover actual and compensatory damages, among others, for the
reconstruction of the fence. The Court found that she failed to adduce evidence to
satisfactorily prove the amount of actual damage incurred and ruled that she was not
entitled to actual damages. The Court, however, awarded her temperate damages.
DOCTRINE: When pecuniary loss has been suffered but the amount cannot, from the
nature of the case, be proven with certainty, temperate damages may be recovered.
Temperate damages may be allowed in cases where from the nature of the case, definite
proof of pecuniary loss cannot be adduced, although the court is convinced that the
aggrieved party suffered some pecuniary loss.
FACTS:
● De Guzman, represented by attorneys-in-fact, entered into a Construction
Agreement with A. M. Tumolva Engineering Works for the construction of an
orphanage. Incorporated in the Agreement was the plan and specifications for the
perimeter fence. The Contractor, however, made deviations from the agreed plan
with respect to the perimeter fence.
● Sept 2005 – After the project’s completion, De Guzman issued a Certificate of
Acceptance. Contractor issued a quitclaim acknowledging the termination of the
contract and the full compliance therewith by De Guzman.
● Nov 2006 – A portion of the perimeter fence collapsed during typhoon Milenyo,
with other portions tilting. De Guzman, sent a letter to the Contractor demanding
the repair of the fence in accordance with the plan. Contractor claimed the
destruction was an act of God and expressed willingness to discuss the matter to
avoid litigation. De Guzman, however, reiterated her demands for the restoration
of the wall w/o additional cost on her part OR in the alternative, for the
Contractor to make an offer of a certain amount by way of compensation for the
damages sustained. This was also unheeded.
● Construction Industry Arbitration Commission (CIAC) Arbitration –
o De Guzman: Alleged the Contractor deliberately defrauded her by
undersizing the required column rebars of the fence. Contractor also
failed to anchor the beams, and place drains and weepholes along the
lower walls. Prayed for actual, moral and exemplary damages, as well
as attorney’s fees and expenses of litigation, among others.
o Contractor: Denied liability for the damaged fence, claiming it was an
act of God. Though he admits making deviations from the plan, he
says that they were made with the knowledge and consent of De
Guzman through her representative, Architect Baterna and Project
Engr. Santos. Also, the claim for damages was barred by the 12-mo
period from the issuance of the Certificate of Acceptance of the
project within which to file claim.
interposed a counterclaim for actual and compensatory damages for
the additional work/change orders made, attorney’s fees and
litigation expenses.
● Construction Industry Arbitration Commission Arbitration – Awarded to de
Guzman – 1) actual damages for reconstructing the fence (P187 509), interest on
the said amount at 6%/ annum and 12% thereon from finality of the judgment
herein, 3) moral damages (P100k), exemplary damages (P100k), and attorney’s fees
and expenses of litigation (P50k)
● CA - Modified, deleting award for actual, moral and exemplary damages, but
awarding temperate damages in the amount of P100 K for reconstructing the fence.
o Although the Contractor deviated from the plan, the award of actual
damages was not proper inasmuch as De Guzman failed to establish
its extent with reasonable certainty.
o Temperate damages, however, are appropriate considering that De
Guzman suffered pecuniary loss as a result of the collapse of the
fence due to the Contractor’s negligence and violation of his
undertakings in the Agreement.
o Award for exemplary damages cannot be sustained absent showing
that Contractor acted in wanton, reckless, fraudulent, oppressive or
malevolent manner.
MFR by De Guzman denied.
RULING: WHEREFORE, the petition is denied. The Decision of the Court of
Appeals dated February 24, 2009 and its Resolution dated May 26, 2009 are
AFFIRMED with the MODIFICATION that the award of P100, 000.00 as temperate
damages is increased to P150, 000.00. The award shall earn interest at the rate of 12%
per annum reckoned from the finality of this judgment until fully paid. SO ORDERED.
Whether De Guzman is entitled to actual damages – NO.
● There is no doubt that De Guzman incurred damages as a result of the collapse of
the perimeter fence. The Contractor is guilty of negligence and is therefore liable
for the damages caused. These are factual findings of the TC affirmed by the CA
and are generally accorded not only respect, but also finality.
● Award of actual damages by CIAC, however, is not proper under the circumstances
as there is no concrete evidence to support the plea. In determining actual damages,
one cannot rely on mere assertions, speculations, conjectures or guesswork, but
must depend on competent proof and on the best evidence obtainable regarding
specific facts that could afford some basis for measuring compensatory or actual
damages. SEE Art. 2199 of the NCC.
● De Guzman failed to adduce evidence to satisfactorily prove the amount of actual
damage incurred. The handwritten calculation of reconstruction costs made by
Engr. Santos and attached to his affidavit cannot be given any probative value
because he never took the witness stand to affirm the veracity of his allegations in
his affidavit and be cross-examined on them. Neither is there any evidence
presented to substantiate Engr. Santos’s computation of the reconstruction costs.
● De Guzman is, nevertheless, entitled to temperate damages as provided compensation, were not heeded by the Contractor. The latter’s unjust refusal to
under Art. 2224 of the NCC for the loss she suffered. When pecuniary loss satisfy De Guzman’s valid, just and demandable claim constrained her to litigate
has been suffered but the amount cannot, from the nature of the case, be and incur expenses to protect her interest. SEE Art. 2208 (2) of the NCC.
proven with certainty, temperate damages may be recovered. Temperate
damages may be allowed in cases where from the nature of the case, definite
proof of pecuniary loss cannot be adduced, although the court is convinced
that the aggrieved party suffered some pecuniary loss.
● As De Guzman failed to prove the exact amount of damage with certainty as
required by law, the CA was correct in awarding temperate damages, in lieu of
actual damages. But, after weighing carefully the attendant circumstances and taking
into account the cost of rebuilding the damaged portions of the perimeter fence,
the amount of P 100K should be increased to P 150K.

Whether De Guzman is entitled to the other damages initially awarded by the

TC – NO.
● As to moral damages –
o Record is bereft of any proof that she actually suffered moral
damages as contemplated in Art. 2217 of the Code. Her testimony
did not provide specific details of the suffering she allegedly went
through after the fence collapsed while she was miles away in the US.
As the CA aptly, observed, “the testimony… as to her worry for the
safety of the children in the orphanage is insufficient to establish
entitlement thereto.”
o It was not clearly established that the destruction was the proximate
result of the Contractor’s act of making deviations from the plan, as it
collapsed in the midst of typhoon Milenyo.
o De Guzman was not able to show that her situation fell within any of
the cases enumerated in Art. 2219 of the NCC.
o Neither does the breach of contract committed by the Contractor,
not being fraudulent or made in bad faith, warrant the grant of moral
damages. SEE Art. 2220.
● As to exemplary damages –
o De Guzman cannot be awarded exemplary damages in the absence of
any evidence showing that the Contractor acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner as provided in
Art. 2232.
o The award cannot be made merely on the allegation of De Guzman
that the Contractor’s deviations from the plans and specifications
without her written consent was deplorable and condemnable. The
Court regards the deviations as excusable due to the unavailability of
the approved construction materials.

Whether De Guzman is entitled to attorney’s fees – YES.

● De Guzman is entitled, although the Court recognizes that it is a sound policy not
to set a premium on the right to litigate. It must be recalled that De Guzman’s
repeated demands for the repair of the fence or the payment of damages by way of